JOSEPH P. MCVICKER and wife, SUSAN MCVICKER, Plaintiffs,
BOGUE SOUND YACHT CLUB, INC., Defendant.
in the Court of Appeals 4 October 2017.
by plaintiffs from order entered 4 March 2016 by Judge
Benjamin G. Alford in Carteret County, No. 14 CVS 421
Harvell and Collins, P.A., by Russell C. Alexander and Wesley
A. Collins, for plaintiff-appellants.
Poe Adams & Bernstein LLP, by Michael J. Crook, for
and Susan McVicker ("Plaintiffs") appeal from the
trial court's order granting summary judgment to the
Bogue Sound Yacht Club, Inc. ("Defendant" or
"the Association"). We reverse the trial
court's order and remand to the trial court for entry of
summary judgment in favor of Plaintiffs.
is a non-profit corporation, which operates the
homeowners' association for the Bogue Sound Yacht Club
subdivision located in Carteret County. Plaintiffs are lot
owners within the subdivision. The subdivision is subject to
the Amendment of Declaration of Covenants, Restrictions, and
Easements of Bogue Sound Yacht Club.
October 2013, Plaintiffs hired independent contractors to cut
trees and clear brush on their property in order to maintain
the lot's appearance and to prevent overgrowth.
Plaintiffs did not believe they were required to seek
approval of the Architectural Control Committee prior to
beginning this work to remove trees and clear brush on their
lot and did not do so. Before work on the property was
completed, Defendant sent Plaintiffs a "Notice of
[Architectural Control Committee] Violation" demanding
Plaintiffs stop clearing trees on their property "until
the proper . . . application form and $250 Refundable
Construction Bond has been submitted for approval."
However, with crews already on site and nearly finished,
Plaintiffs continued the work and completed it the following
eventually offered to submit the application, but refused to
pay the requested $250 bond on the grounds such bond was not
authorized either by the Covenants or applicable law.
Defendant refused to accept Plaintiffs' application
without the $250 bond and sent Plaintiffs notice of a
hearing. The hearing notice alleged Plaintiffs'
noncompliance with Association standards by clearing trees
without following Defendant's purportedly required
procedure. The hearing notice also notified Plaintiffs of a
hearing to be held on 4 November 2013 before the board of
directors, in order to determine whether the Association
should impose a fine on Plaintiffs. The hearing notice
invited Plaintiffs to be heard on the matter by attending the
hearing in person or submitting a written response;
Plaintiffs opted to attend the hearing.
November, Defendant mailed Plaintiffs written notice of the
Association's decision to allow a seven-day period for
Plaintiffs to submit the application and construction bond.
The notice indicated Plaintiffs' failure to comply within
seven days would result in imposition of a fine of one
hundred dollars per day for thirty days. On or about 10
December 2013, Plaintiffs submitted the $250 bond, under
protest, along with the required application. Defendant
retroactively approved Plaintiffs' application and
returned the $250 bond in full. Yet, because the bond was
purportedly not submitted within the seven-day period,
Defendant assessed $1, 400 in fines. Defendant subsequently
reduced the fines by twenty-five percent, to $1, 050.
April 2014, Plaintiffs filed a verified complaint alleging
two claims for declaratory relief and a claim for breach of
fiduciary duty. Plaintiffs sought a declaration that: (1)
Defendant failed to comply with requirements of the North
Carolina Planned Community Act pertaining to the imposition
of fines; and (2) Defendant is without authority to impose
the construction bond. Additionally, Plaintiffs claimed
Defendant had breached a fiduciary duty owed to Plaintiffs
and other members of the Association by selectively enforcing
covenants and "failing to evenly, uniformly, fairly and
equitably apply the Covenants to its members."
answered the complaint on 18 June 2014, and both parties
moved for partial summary judgment. In Defendant's
motion, Defendant contended pursuant to the Covenants and
bylaws of Bogue Sound Yacht Club, Defendant "is
empowered and required to maintain, keep up, and supervise
the use and condition of the common areas in the
subdivision" and to "regulate the use and
maintenance of the properties within the subdivision through
the rules and regulations promulgated by its Board of
Directors through its Architectural Control Committee."
Defendant claimed "[i]n furtherance of these rights and
responsibilities, [Defendant] . . . requires that homeowners
submit an application containing plans and specifications for
work that may impact property values, other structures,
natural vegetation, topography, [and] privacy . . . ."
Part of this application process purportedly includes the
power to additionally require a $250 construction bond.
Defendant attached Plaintiff Joseph P. McVicker's
deposition to support its motion.
support of their motion, Plaintiffs argued they were entitled
to judgment as a matter of law, because the Covenants
"contain no authority for the imposition of such a
bond" and because Defendant is without authority to
impose the bond, the failure to post the bond cannot serve as
a basis for imposing a fine. Plaintiffs further asserted
Defendant failed to give legally sufficient notice of the
charge, as required by North Carolina law.
trial court heard the parties on their motions for partial
summary judgment on 1 February 2016. On 4 March 2016, the
court entered a written order granting Defendant's motion
for partial summary judgment, denying Plaintiffs' motion,
and dismissing with prejudice Plaintiffs' claims for
declaratory relief. On 9 March 2016, Plaintiffs gave notice
of appeal to this Court. In an opinion filed 6 December 2016,
this Court dismissed Plaintiffs' appeal as interlocutory.
McVicker v. Bogue Sound Yacht Club, Inc., ___
N.C.App. ___, 794 S.E.2d 560, 2016 WL 7100634 (unpublished).
Plaintiffs subsequently dismissed their third claim for
relief entitled "Breach of Fiduciary Duty and Selective
Enforcement." Plaintiffs then filed their second notice
of appeal to this Court on 10 March 2017.
appeal from the superior court's final order lies of
right to this Court pursuant to N.C. Gen. Stat. §
contend the trial court erred in granting summary judgment to
Defendant on the issues of: (1) Defendant's authority to
require a bond be submitted with a request for approval to
Defendant prior to alterations, improvements or construction
on Plaintiffs' lot; and (2) Defendant's imposition of
a fine upon Plaintiffs.
Standard of Review
judgment is proper where "the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled
to a judgment as a matter of law." N.C. Gen. Stat.
§ 1A-1, Rule 56(c) (2015); see Draughon v. Harnett
Cty. Bd. of Educ., 158 N.C.App. 208, 212, 580 S.E.2d
732, 737 (2003) (citation omitted), aff'd per
curiam, 358 N.C. 131, 591 S.E.2d 521 (2004). "An
issue is 'genuine' if it can be proven by substantial
evidence and a fact is 'material' if it would
constitute or irrevocably establish any material element of a
claim or a defense." Lowe v. Bradford, 305 N.C.
366, 369, 289 S.E.2d 363, 366 (1982) (citations and internal
quotation marks omitted).
reviewing a motion for summary judgment, the trial court must
"view the pleadings and all other evidence in the record
in the light most favorable to the nonmovant and draw all
reasonable inferences in that party's favor."
N.C. Farm Bureau Mut. Ins. Co. v. Sadler, 365 N.C.
178, 182, 711 S.E.2d 114, 117 (2011) (citation omitted). This
Court reviews a trial court's summary judgment order
de novo. Sturgill v. Ashe Mem'l Hosp.,
Inc., 186 N.C.App. 624, 626, 652 S.E.2d 302, 304 (2007),
disc. review denied, 362 N.C. 180, 658 S.E.2d 662
Plaintiffs argue the trial court erred in granting summary
judgment in favor of Defendant, because Defendant is not
authorized to impose the construction bond and because
Defendant failed to follow the North Carolina Planned